Conservative news tries to portray conservatives as being underdogs, fighting against their liberal overlords. That is backwards.
The last time the Democrats held a majority in the Supreme Court was June 23, 1969. The Republicans gained a 5-4 majority on June 9, 1970, and have held a strong majority (usually 6-3 or 7-2) for the last fifty years. At one point, their majority was 8-0.
From 1991 to 1993, Byron White was the only Democrat on the Supreme Court. He resigned on June 28 and was not replaced until August 10. His replacement was Ruth Bader Ginsburg, (who died last Friday). She was the second woman to be appointed to the Supreme Court. She would remain the only Democrat on the court until she was joined by Stephen Breyer in 1994.
How did it get so lopsided? Maybe it was luck. From 1977 to 2017, a span of 40 years, we had a Democratic president for 20 of those years and a Republican president for 20 of those years. During that time, there were 14 Supreme Court vacancies that got filled. All things being equal, you’d expect seven Democrats and seven Republicans. But it was actually ten Republicans and only four Democrats. But I’m getting a little ahead of myself. Let’s back up to 2009.
When Obama was sworn in as President, in January of 2009, the Supreme Court was a Republican majority, 7-2 (the two Democrats being Ginsburg and Breyer). On June 29 of that year, Republican Justice David Souter retired, at the age of 69. Obama appointed Sonia Sotomayor to replace him. Exactly one year later, Republican John Paul Stevens also retired, and was replaced by Elena Kagan. For the first time in 40 years, the Republican majority was back to only 5-4. And Obama was only in his second year as President. When Obama was reelected in 2012, some Democrats were hopeful that they might take a majority in the Supreme Court, for the first time in over 40 years. It was just a matter of waiting to see which Justice would be the next to die or retire. There was about a 50-50 chance it would be a Republican. Then, on February 13, 2016, Republican Justice Antonin Scalia died unexpectedly. Obama had more than 11 months left in his term as President. The Democrats could finally have a turn at being in the majority of the Supreme Court.
This wouldn’t be much of a victory, though. Of all the Republicans on the court at that time, Scalia was known as being the most centrist of the bunch. He often voted with the Democrats anyway. Obama was known for being a centrist Democrat, and he nominated centrist Merrick Garland to replace Scalia. They’d be replacing a centrist with another centrist.
But the Senate was controlled by the Republicans, led by Mitch McConnell. The Republicans decided to block the nomination, to prevent the Democrats from gaining a majority in the Supreme Court. As Majority Leader, Mitch McConnell set the agenda for the Senate, and he made sure that Merrick Garland did not even have confirmation hearings, let alone a vote. McConnell justified this move by saying that it was unfair (debatable) and unprecedented (not true) to confirm a Supreme Court Justice in an election year. The Republicans blocked Garland’s confirmation, leaving the Supreme Court tied 4-4 for more than a year, from February of 2016 to April of 2017.
Of course, there’s nothing in the Constitution that says you can’t fill a Supreme Court vacancy in an election year. But there’s also nothing in the Constitution that says the Senate can’t capriciously decide to block a Supreme Court nomination, for whatever reason they choose. The precise justification that McConnell used wasn’t particularly important.
But it did show that he’s a hypocrite.
Because, four years later, here we are. Mitch McConnell is eager to replace the recently deceased Ruth Bader Ginsburg, just 6 weeks before election day, and after early voting has already started. Now he says that filling a Supreme Court vacancy in an election year is fine, because the Senate is controlled by the same political party as the President.
As it stands right now, the Republicans have a 5-3 majority in the Supreme Court. The outcome of this nomination will decide whether the Republicans increase their majority to 6-3 or decrease to 5-4 (which is what it was before RBG died). In neither case would the Democrats gain a majority.
These are the stakes for which Mitch McConnell and the Republican Party are willing to go back on their word. They said it was precedent that you shouldn’t replace a Supreme Court Justice in an election year. They said the people should have a voice in choosing the next President and that should be the President who fills the vacancy. In particular, Senator Lindsey Graham said, in 2016, “We are setting a precedent today, Republicans are.” and if a similar situation arose, “you can use my words against me and you’d be absolutely right.” In October 2018, Graham said, in an interview, “If an opening comes in the last year of President Trump’s term, and the primary process has started, we’ll wait till the next election.” Not only has the primary process started, early voting has already started. The election is happening right now. But Graham and the other Republicans have decided to forget about what’s fair and just do what they want to do, which is to regain a 6-3 majority in the Supreme Court.
I would like to remind you that, in six of the last seven Presidential elections, there have been more votes for Democrats than Republicans. The will of the people, as expressed at the ballot box, shows a clear majority for Democrats over Republicans. And yet, the Republicans have held a majority in the Supreme Court for fifty years. And now, they are willing to fight dirty to expand their majority and try to hang onto it for another fifty years.
Oh, by the way, the Republicans also control the state government in 2/3 of the states. And they control the Senate. And they have an advantage in the Electoral College. Despite the fact that only 30% of Americans identify as “Republican” and they consistently get less than 50% of the votes.
That’s messed up.